Cohen v. King ( 2019 )

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DEBRA COHEN v. PATRICIA A. KING
(AC 40834)
Lavine, Keller and Beach, Js.
Syllabus
The plaintiff attorney sought to recover damages from the defendant attorney
for defamation and fraud in connection with a grievance complaint the
plaintiff had failed against the defendant with the Statewide Grievance
Committee. Specifically, she claimed that the defendant published false
and defamatory statements and remarks about the plaintiff in the defen-
dant’s answer to the plaintiff’s grievance complaint. The trial court
granted the defendant’s motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this court. Held that the
trial court properly concluded that the litigation privilege barred the
plaintiff’s action sounding in defamation and fraud; that court properly
concluded that the litigation privilege extends absolute immunity to
statements made to the attorney disciplinary authority by an attorney
who is the subject of a grievance complaint, as an attorney who is the
subject of a grievance proceeding is a party to a quasi-judicial proceed-
ing, and, therefore, relevant statements made by the attorney are
shielded by the litigation privilege, and the plaintiff could not prevail
in her claim that the litigation privilege did not properly apply because
her complaint pleads facts suggesting that the defendant both abused
the judicial process and breached the professional duty of candor, as
our Supreme Court has refused to apply absolute immunity to causes
of action alleging the improper use of the judicial system, which is
disctict from attempting to impose liability on a participant in a judicial
proceeding for the words used therein, and this court has determined
prevously that statements made in a grievance proceeding are shielded
by absolute immunity, and that the act of filing a grievance is protected
as well.
Argued November 27, 2018—officially released April 2, 2019
Procedural History
Action to recover damages for defamation and fraud,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Wahla,
J., granted the defendant’s motion to dismiss and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Debra Cohen, self-represented, the appellant
(plaintiff).
Philip Miller, assistant attorney general, with whom,
on the brief, was George Jepsen, former attorney gen-
eral, for the appellee (defendant).
Opinion
PER CURIAM. The self-represented plaintiff, Debra
Cohen, appeals from the judgment of the trial court
granting a motion to dismiss filed by the defendant,
Patricia A. King. On appeal, the plaintiff claims that
the trial court erred in concluding that the doctrine of
litigation privilege barred her action sounding in defa-
mation and fraud. We affirm the judgment of the trial
court.
The following facts and procedural history are rele-
vant to our decision. The defendant was the chief disci-
plinary counsel for the Office of Chief Disciplinary
Counsel. The plaintiff was terminated from her position
as a staff attorney for the Office of the Probate Court
Administrator following a disciplinary proceeding con-
ducted pursuant to the Connecticut Judicial Branch
Administrative Policies and Procedures Manual Policy
612, titled ‘‘Corrective Discipline.’’ While the proceeding
was pending, the Probate Court Administrator notified
the defendant of the matter.
The defendant then assigned an assistant chief disci-
plinary counsel to investigate the matter. Thereafter,
the defendant initiated grievance proceedings against
the plaintiff. A reviewing committee issued a reprimand
to the plaintiff. The Statewide Grievance Committee
(committee) and the Superior Court affirmed the rep-
rimand.1
During the pendency of the grievance proceeding,
the plaintiff filed her own grievance complaint against
the defendant. The plaintiff alleged that the defendant’s
decision to file a grievance ‘‘violated several sections
of the Practice Book, the duties and responsibilities of
her office, and the public’s trust . . . .’’ In response,
the defendant contended that the plaintiff’s grievance
complaint was without merit. The grievance panel
found no probable cause and dismissed the complaint
against the defendant.
The plaintiff then instituted the present civil action
against the defendant. The plaintiff claimed that the
defendant ‘‘published false and defamatory statements
and remarks about the plaintiff in her (defendant’s)
answer to [the plaintiff’s] Grievance Complaint [against
the defendant] . . . .’’2 The defendant moved to dismiss
the action on the ground of litigation privilege. The
court concluded that the litigation privilege barred the
action and granted the motion to dismiss. This
appeal followed.
The issue presented is whether the court erred in
concluding that the litigation privilege extends absolute
immunity to statements made to the attorney disciplin-
ary authority by an attorney who is the subject of a
grievance complaint. In deciding a motion to dismiss,
a ‘‘court must take the facts to be those alleged in
from the allegations, construing them in a manner most
favorable to the pleader . . . . The motion to dismiss
. . . admits all facts which are well pleaded, invokes
the existing record and must be decided upon that
alone.’’ (Internal quotation marks omitted.) Gold v.
Rowland, 296 Conn. 186, 200–201, 994 A.2d 106 (2010).
‘‘Additionally, whether attorneys are protected by abso-
lute immunity for their conduct during judicial proceed-
ings is a question of law over which our review is
plenary.’’ Simms v. Seaman, 308 Conn. 523, 530, 69
A.3d 880 (2013).
Connecticut has long recognized the litigation privi-
lege. See id., 535–39. ‘‘[T]he purpose of affording abso-
lute immunity to those who provide information in
connection with judicial and quasi-judicial proceedings
is that in certain situations the public interest in having
people speak freely outweighs the risk that individuals
will occasionally abuse the privilege by making false
and malicious statements. . . . Put simply, [litigation
privilege] furthers the public policy of encouraging par-
ticipation and candor in judicial and quasi-judicial pro-
ceedings. This objective would be thwarted if those
persons whom the common-law doctrine [of litigation
privilege] was intended to protect nevertheless faced
the threat of suit. In this regard, the purpose of the
absolute immunity afforded participants in judicial and
quasi-judicial proceedings is the same as the purpose
of the sovereign immunity enjoyed by the state. . . .
As a result, courts have recognized [litigation privilege]
as a defense in certain retaliatory civil actions . . . .’’
(Internal quotation marks omitted.) MacDermid, Inc.
v. Leonetti, 310 Conn. 616, 627–28, 79 A.3d 60 (2013).
‘‘The rationale underlying [litigation] privilege is
grounded upon the proper and efficient administration
of justice. . . . Participants in a judicial process must
be able to testify or otherwise take part without being
hampered by fear of defamation suits. . . . Therefore,
in determining whether a statement is made in the
course of a judicial proceeding, it is important to con-
sider whether there is a sound public policy reason for
permitting the complete freedom of expression that a
grant of [litigation privilege] provides. . . . In making
that determination, the court must decide as a matter
of law whether the allegedly defamatory statements are
sufficiently relevant to the issues involved in a proposed
or ongoing judicial proceeding. The test for relevancy
is generous and judicial proceeding has been defined
liberally to encompass much more than civil litigation
or criminal trials.’’ (Citations omitted; internal quotation
marks omitted.) Hopkins v. O’Connor, 282 Conn. 821,
839, 925 A.2d 1030 (2007).
‘‘The judicial proceeding to which [absolute] immu-
nity attaches has not been defined very exactly. It
includes any hearing before a tribunal which performs
a judicial function, ex parte or otherwise, and whether
the hearing is public or not. It includes for example,
lunacy, bankruptcy, or naturalization proceedings, and
an election contest. It extends also to the proceedings
of many administrative officers, such as boards and
commissions, so far as they have powers of discretion
in applying the law to the facts which are regarded as
judicial or quasi-judicial, in character.’’ (Internal quota-
tion marks omitted.) Kelley v. Bonney, 221 Conn. 549,
566, 571, 606 A.2d 693 (1992).
In a grievance proceeding, the committee performs
a number of judicial functions, such as assigning the
case to a reviewing committee, compelling testimony
and the production of evidence via subpoena power,
holding hearings at which both parties have the right
to be heard, and, ultimately, recommending dismissal
of the complaint or the imposition of sanctions. Field
v. Kearns, 43 Conn. App. 265, 272–73, 682 A.2d 148, cert.
denied, 239 Conn. 942, 684 A.2d 711 (1996), overruled
in part on other grounds by Rioux v. Barry, 283 Conn.
938, 927 A.2d 304 (2007) (overruling grant of absolute
privilege in vexatious litigation claim). Accordingly, a
grievance proceeding is quasi-judicial in nature. Id., 273.
This proposition is not in dispute.
The plaintiff, however, contends that the litigation
privilege does not extend absolute immunity to state-
ments made to a disciplinary authority by an attorney
who is the subject of the grievance complaint or disci-
plinary investigation. The plaintiff argues that our con-
clusion in Field v. Kearns, supra, 43 Conn. App. 265,
that ‘‘bar grievants are absolutely immune from liability
for the content of any relevant statements made during
a bar grievance proceeding’’; Id., 273; does not apply
to attorneys who are the subjects of grievance proceed-
ings, and that the privilege should not be so extended.3
We disagree.
Field contains no language limiting the parties or
participants who are protected by the litigation privilege
in grievance proceedings. Moreover, this court stated
that ‘‘parties to or witnesses before judicial or quasi-
judicial proceedings are entitled to absolute immunity
for the content of statements made therein.’’ Id., 271,
citing Petyan v. Ellis, 200 Conn. 243, 245–46, 510 A.2d
1337 (1986); see also Hopkins v. O’Connor, supra, 282
Conn. 839; Kelley v. Bonney, supra, 221 Conn. 573–74.
An attorney who is the subject of a grievance proceed-
ing is a party to a quasi-judicial proceeding, and, there-
fore, relevant statements made by the attorney are
shielded by the litigation privilege. Accordingly, we con-
clude that absolute immunity applied to relevant state-
ments the defendant made in response to the plaintiff’s
grievance complaint.
The plaintiff also argues that the litigation privilege
did not properly apply because her complaint pleads
facts suggesting that the defendant both abused the
judicial process and breached the professional duty of
candor. We disagree.
Our Supreme Court has ‘‘recognized a distinction
between attempting to impose liability upon a partici-
pant in a judicial proceeding for the words used therein
and attempting to impose liability upon a litigant for
his improper use of the judicial system itself . . . . In
this regard, we have refused to apply absolute immunity
to causes of action alleging the improper use of the
judicial system.’’ (Citation omitted.) MacDermid, Inc.
v. Leonetti, supra, 310 Conn. 629; see also id. at 625–26
(litigation privilege did not shield claim by employee
against employer alleging that employer had brought
action against employee solely in retaliation for
employee exercising his rights under Workers’ Compen-
sation Act).
We note that Field held not only that statements made
in a grievance proceeding were shielded by absolute
immunity, but also that the act of filing a grievance was
protected. Field v. Kearns, supra, 43 Conn. App. 273.
In Tyler v. Tatoian, 164 Conn. App. 82, 137 A.3d 801,
cert. denied, 321 Conn. 908, 135 A.3d 710 (2016), this
court held that the litigation privilege barred the plain-
tiff’s claim against an attorney who allegedly made
fraudulent statements during the course of a judicial
proceeding.4 Id., 92. This court concluded that ‘‘fraudu-
lent conduct by attorneys, while strongly discouraged,
(1) does not subvert the underlying purpose of a judicial
proceeding, as does conduct constituting abuse of pro-
cess and vexatious litigation, for which the privilege
may not be invoked, (2) is similar in essential respects
to defamatory statements, which are protected by the
privilege, (3) may be adequately addressed by other
available remedies, and (4) has been protected by the
litigation privilege in federal courts, including the
United States Supreme Court and the Second Circuit
Court of Appeals, for exactly the same reasons that
defamatory statements are protected.’’ (Emphasis in
original; internal quotation marks omitted.) Id., 91–92.
Our conclusions in Tyler and in Field dispose of the
plaintiff’s claims.
The judgment is affirmed.
1
The plaintiff has appealed from the judgment of the Superior Court
affirming the reprimand in a separate appeal, which is pending before
this court.
2
Specifically, the plaintiff alleged that the defendant falsely and mali-
ciously stated: ‘‘(a) That the plaintiff had engaged in serious misconduct
concerning two estate matters, paying herself improper fiduciary fees; and
(b) That the plaintiff was engaged in an unauthorized side business while
serving as a court official and attorney.’’
3
In Field, the plaintiff was an attorney who was sued for malpractice by
a client whom he previously had represented in a foreclosure action. Field
v. Kearns, supra, 43 Conn. App. 267. The defendant, the attorney who
handled the client’s malpractice case, requested in writing that the plaintiff
notify his professional malpractice insurance carrier of the lawsuit. Id. After
the plaintiff declined to do so, the defendant filed a complaint against the
plaintiff with the statewide grievance committee, alleging that the plaintiff
obstructed judicial process by failing to appear in the lawsuit and by failing
to confirm that his malpractice carrier had been notified of the claim. Id.
Thereafter, the plaintiff provided a panel of the committee with a copy of
the declarations page of his professional liability policy, and the defendant
then sent a copy of a new complaint to the insurance carrier. Id., 267–68.
The plaintiff then brought a seven count complaint against the defendant
concerning the defendant’s conduct in both the malpractice action and the
grievance complaint. Id., 268. The trial court granted the defendant’s motion
for summary judgment concluding, in relevant part, that the litigation privi-
lege barred a number of the plaintiff’s claims. Id., 269. On appeal, this court
affirmed the trial court’s judgment, concluding that the grievance proceeding
was quasi-judicial and that absolute immunity applied to statements made
therein. Id., 273.
4
In Tyler, the plaintiffs were brothers who were named beneficiaries of
their mother’s trust. Tyler v. Tatoian, supra, 164 Conn. App. 83–84. The
defendant, an attorney, was the trustee. Id., 84. The plaintiffs brought an
action against the defendant, alleging, inter alia, that the defendant misman-
aged the trust by failing to diversify the trust’s assets. Id. At his deposition,
the defendant testified that he had relied on the advice of an investment
advisor in deciding not to diversify trust assets. Id., 84–85. The plaintiffs
requested that the defendant seek to recover damages from the advisor, but
the defendant declined to do so, and the court denied the plaintiffs’ motion
to compel the defendant to seek recovery from the advisor. Id., 85. At trial,
the defendant testified that he did not rely on advice from the investment
advisor. Id., 85–86. The jury returned a verdict for the defendant. Id., 86.
The plaintiffs then commenced a second action, in which they alleged,
inter alia, that the defendant committed fraud when he offered contradictory
testimony at his deposition and at trial. Id., 86. The defendant moved to
dismiss the plaintiff’s complaint, claiming that his communications were
made during the course of judicial proceedings and were thus protected by
the litigation privilege. Id. The court granted the defendant’s motion. Id. On
appeal, the plaintiffs claimed that the litigation privilege should not bar their
complaint because the defendant’s alleged fraud constituted improper use
of the judicial system. Id., 87. This court disagreed and affirmed the judgment
of the trial court. Id., 94.